Com. v. Waters, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN VINCENT WATERS :
:
Appellant : No. 99 MDA 2018
Appeal from the Judgment of Sentence December 4, 2017
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000893-1981
BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 24, 2021
Appellant, John Vincent Waters, appeals from the December 4, 2017,
judgment of sentence entered in the Court of Common Pleas of Cumberland
County following the trial court’s grant of PCRA1 relief and resentencing of
Appellant on, inter alia, his first-degree murder conviction pursuant to
Montgomery v. Louisiana, 577 U.S. 190, 136 S.Ct. 718 (2016), which held
that state courts are required to grant retroactive effect to new substantive
rules of federal constitutional law, such as Miller v. Alabama, 567 U.S. 460,
132 S.Ct. 2455 (2012).2
____________________________________________
1 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
2 Miller held unconstitutional mandatory sentences of life imprisonment
without the possibility of parole for offenders, like Appellant, who were under
eighteen years of age at the time of their crimes.
____________________________________
* Former Justice specially assigned to the Superior Court.
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As discussed infra, this Court affirmed Appellant’s December 4, 2017,
judgment of sentence; however, the Pennsylvania Supreme Court vacated our
judgment, in part, and remanded for consideration limited to the issue of
whether the trial court properly imposed the costs of prosecution in
resentencing Appellant on December 4, 2017. After a careful review, we
vacate the portion of the trial court’s December 4, 2017, sentence directing
Appellant to pay the costs of prosecution. We affirm the December 4, 2017,
judgment of sentence in all other respects.
The relevant facts and procedural history are as follows:
On October 14, 1981, the body of an eleven-year-old boy,
Steven Turner, was found stabbed and bludgeoned to death in an
abandoned farmhouse within a mile of his home in Cumberland
County, Pennsylvania. The body, covered by stones and boards,
was discovered in the evening as a result of a search for the boy
which commenced when he did not come home for dinner.
An autopsy revealed that the 4 foot 9 inch, 80 pound sixth
grader had died as a result of multiple head injuries. He had
sustained a massive fracture of the skull from blows to the back
and the side of the head, a broken jaw on each side of the face, a
stab wound to the back of the neck and a stab wound to the back
of the chest. He had also been subjected to a post-mortem incise
wound on the right wrist and stab wound in the front of the neck.
The blade of a knife, with its handle broken off, was left in the
victim’s neck. The autopsy report also indicated that sperm was
present in the victim’s mouth.
[A]ppellant…a 152 pound, sixteen-year-old, 5 foot 8 inch
high school student told police during an original canvass of the
neighborhood, that he had last seen the victim on the afternoon
he disappeared. He told the police that he had observed the victim
getting into an unknown car, which subsequently drove out of the
development.
As a result of a further canvass of the neighborhood, the
police obtained a steak knife from [A]ppellant’s mother. The
knife, which she had in her house, matched the one found at the
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murder scene including the blade which had been left in the
victim’s throat.
On October 25, 1981, the police requested that [A]ppellant
and his father report to the municipal building for questioning
concerning the homicide. [A]ppellant was given the Miranda
warnings in the presence of his father. Thereafter he and his
father consulted with each other. [A]ppellant waived his rights
and agreed to speak to the police without having his father
present. His father had no objection to such an interrogation.
During the course of the questioning, [A]ppellant made an
inculpatory statement, admitting that he had engaged in oral
intercourse with the victim and then had killed him.
Commonwealth v. Waters, 483 A.2d 855, 857-58 (Pa.Super. 1984).
On September 23, 1982, a jury convicted Appellant of first-
degree murder, 18 Pa.C.S. § 2502(a), and involuntary deviate
sexual intercourse (“IDSI”), 18 Pa.C.S. § 3123. On January 25,
1983, the trial court sentenced Appellant to life in prison without
the possibility of parole for first-degree murder, as well as a
concurrent term of four years to ten years in prison for IDSI. This
Court affirmed Appellant’s judgment of sentence on October 12,
1984. Waters, supra. The United States Supreme Court denied
Appellant’s writ of certiorari on June 3, 1985. Waters v.
Pennsylvania, 471 U.S. 1137 (1985).
On July 14, 2010, Appellant filed a pro se PCRA petition, and
following the appointment of counsel, the PCRA court denied the
petition as untimely. This Court affirmed. Commonwealth v.
Waters, No. 71 MDA 2011 (Pa.Super. filed 8/16/11) (unpublished
memorandum).
On July 3, 2012, Appellant filed a second pro se PCRA
petition, and following the lower court “staying” the matter,
Appellant’s counsel filed an amended PCRA petition on behalf of
Appellant. Counsel argued that Appellant was entitled to relief
under Montgomery, supra, and Miller, supra. By order entered
on February 3, 2016, the PCRA court granted relief based on the
“new constitutional right” exception to the PCRA’s time-bar.
On November 13, 2017, and December 4, 2017, Appellant,
still represented by counsel, proceeded to resentencing hearings,
at the conclusion of which the trial court resentenced Appellant to
35 years to life imprisonment for first-degree murder, as well as
a consecutive term of four years to ten years in prison for IDSI.
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Appellant filed a timely, counseled motion to modify his
sentence, which the trial court denied on December 15, 2017.
Thereafter, Appellant’s counsel filed a petition to withdraw, which
the trial court granted. The trial court appointed the Public
Defender’s Office to represent Appellant. [A] timely, counseled
appeal followed[.]
Commonwealth v. Waters, No. 99 MDA 2018, *3-4 (Pa.Super. filed 3/1/19)
(unpublished memorandum).
On appeal, Appellant presented the following issues in his “Statement
of Questions Involved” (verbatim) for our consideration:
1. Did the trial court violate the double jeopardy clauses of both
the United States and Pennsylvania Constitutions when it
sentenced your Appellant to a consecutive term of four to ten
years on an involuntary deviate sexual intercourse conviction
after the court, pursuant to Miller v. Alabama, 567 U.S. 460(2012), and Montgomery v. Louisiana, 136 S.Ct. 718(2016), resentenced your Appellant to a term of 35 years to
life on a conviction of first degree murder having modified the
sentence from one of life imprisonment only for the homicide
which was the only authorized sentence at the time the
Appellant was originally sentenced in 1983 and when your
Appellant’s original sentence on his IDSI conviction ran
concurrent to his sentence for the homicide?
2. Based on the language of the trial court’s Rule 1925 Opinion,
did the trial court impermissibly and unconstitutionally impose
sentences on your Appellant out of vindictiveness?
3. Did the trial court mis-apply Miller v. Alabama by placing
undue emphasis on the nature of the crime, barely mentioning
Appellant’s age and concomitant lack of capacity, then
apparently using that young age and lack of capacity as an
aggravating factor in the sentencing process?
4. Because of the interplay of certain Pennsylvania Statutes,
certain Pennsylvania law and Miller and Montgomery, did the
sentencing court have jurisdiction to impose the sentence that
it did for first degree murder?
Appellant’s Brief at 3.
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With regard to Appellant’s first appellate issue challenging the new
sentence imposed upon him on December 4, 2017, we concluded that, since
Appellant’s original sentence was vacated in its entirety, the lower court had
the authority to impose consecutive sentences for Appellant’s first-degree
murder and IDSI convictions, even though it did not do so in the original
sentence. Waters, No. 99 MDA 2018, at *4-5. Further, we concluded there
was no double jeopardy violation. In this regard, we noted that, “despite the
imposition of consecutive sentences upon resentencing, Appellant was
sentenced to a lower aggregate term of incarceration.” Id. at *6. Thus, we
found no merit to Appellant’s first issue.
With regard to Appellant’s second appellate issue, we concluded that,
since he did not receive a greater sentence upon resentencing, and two
separate judges imposed the original and new sentence, there was no
presumption of vindictiveness. Id. at *9. Further, we rejected Appellant’s
claim of actual vindictiveness, which was premised upon statements made by
the trial court in its Pa.R.A.P. 1925(a) opinion. Id. at * 9-11. We found the
trial court’s statements reflected the trial court’s understanding and
application of 42 Pa.C.S.A. § 9721, which required the trial court to consider
the protection of the public, the gravity of the offense in relation to the impact
on the victim and community, and the rehabilitative needs of Appellant. Id.
at *11. Thus, we found no merit to Appellant’s second issue.
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With regard to Appellant’s third appellate issue, in which Appellant
presented a challenge to the discretionary aspects of his sentence, we found
the issue to be waived pursuant to Pa.R.Crim.P. 720 since Appellant did not
present the claim in the trial court. Id. at *11-12.
With regard to Appellant’s fourth appellate issue, Appellant contended
the trial court’s imposition of 35 years to life imprisonment for first-degree
murder upon resentencing him in 2017 constituted an illegal sentence. We
concluded the lower court had the authority to impose a term of 35 years to
life imprisonment for first-degree murder. Id. at *13-14. Thus, we found no
merit to Appellant’s fourth issue.
Accordingly, finding all of Appellant’s issues to be waived or meritless,
we affirmed Appellant’s new judgment of sentence, which was entered on
December 4, 2017.
However, on May 31, 2019, Appellant filed a petition for allowance of
appeal with our Supreme Court. Therein, Appellant presented the following
in his “Questions for Review” (verbatim):
1. Was the Judgment of Sentence entered on December 4, 2017,
effectively violative of the Double Jeopardy clauses of the
United States and Pennsylvania Constitutions as, without
discussion, using current sentencing protocols, a consecutive
sentence was imposed in 2017 to a crime that was committed
in 1981 and whose original sentence was concurrently imposed
in 1983?
2. Was an illegal sentence entered on December 4, 2017, where
Miller mitigating criteria were applied as aggravating factors
in zero -sum fashion, even as those same factors were also
simultaneously applied as required by the United States
Constitution -in mitigation?
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3. Was an illegal sentence entered on December 4, 2017, where
the “costs of prosecution” were imposed anew on a resentence?
4. Since the statutory phrase “life imprisonment” had been
defined in cases spanning more than forty years and then
constitutionally enshrined twice, was it error, after having
prospectively broadened the definition, to unexpectedly,
indefensibly, unforeseeably, and retroactively apply the new
definition to a case some 36 years removed (implicating, inter
alia, due process and lack of jurisdiction as understood by
federal and state decisional laws)?
Appellant’s Petition for Allowance of Appeal, filed 5/31/19, at 2.
On March 24, 2021, our Supreme Court entered a per curiam order,
which provided the following:
AND NOW, this 24th day of March 2021, the Petition for
Allowance of Appeal is GRANTED, limited to the following issue:
Was an illegal sentence entered on December 4, 2017,
where the “costs of prosecution” were imposed anew
on a resentence?
Allocatur is DENIED as to all other issues.
The judgment of the Superior Court is VACATED insofar as
it held that the costs of resentencing were properly imposed on
Appellant where his original sentence was illegal pursuant to
Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v.
Louisiana, 136 S.Ct. 718 (2016). The matter is REMANDED for
further proceedings in light of this Court’s disposition in
Commonwealth v. Lehman, Nos. 47 & 49 MAP 2019, 2020 WL
7502313, [243] A.3d [7] (Pa. Dec. 22, 2020).
Commonwealth v. Waters, No. 309 MAL 2019 (Pa. filed 3/24/21) (per
curiam order) (bold and capitalization in original).
Relevantly, in Lehman, our Supreme Court held that “chargeable costs
include those that [are] effectively ‘caused’ by the defendant’s own conduct.”
Lehman, supra, 243 A.3d at 18. Further, our Supreme Court held “the
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resentencing proceedings made necessary by the decisions in Miller and
Montgomery, and the costs associated with those proceedings, [are] not
‘connected’ with the original prosecution and sentencing of [the defendant]
for purposes of charging [him] with those costs[.]” Lehman, supra, 243 A.3d
at 18. Thus, our Supreme Court held that costs of resentencing a criminal
defendant may not be recovered by the district attorney from the defendant,
when resentencing becomes necessary because the original sentence was
vacated upon a subsequent judicial determination that the sentence was
unconstitutional. Id.
With the above procedural posture and legal precepts in mind, we now
turn our attention to the issue of costs imposed in the case sub judice. When
the trial court originally imposed sentence on January 25, 1983, it directed
Appellant to “pay the costs of prosecution[.]” Trial Court Sentencing Order,
filed 1/25/83. Thereafter, Appellant was subject to resentencing solely
because his mandatory sentence of life without parole was vacated upon the
judicial determination that the statute pursuant to which he received his
sentence was unconstitutional, i.e., in the aftermath of Miller and
Montgomery. When the trial court imposed the new sentence on December
4, 2017, it again directed Appellant to “pay the costs of prosecution[.]” Trial
Court Sentencing Order, filed 12/4/17.
Based upon the express holdings of Lehman, supra, since Appellant’s
resentencing was necessary solely because his original sentence was
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unconstitutional, we conclude the trial court erred in directing Appellant to pay
the costs of prosecution upon resentencing Appellant on December 4, 2017.
Thus, we vacate the trial court’s sentence for Appellant to “pay the costs of
prosecution” as set forth in the December 4, 2017, sentencing order. In all
other respects, we affirm Appellant’s December 4, 2017, judgment of
sentence.
Judgment of Sentence affirmed, in part, and vacated, in part.
Judge Ott did not participate in the consideration or decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/24/2021
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